June 11, 2013

DOJ Civil Division Nominee Faces No Heat

Stuart Delery had an easy time during a confirmation hearing Tuesday to become the permanent head of the U.S. Department of Justice’s Civil Division—in large part because of the political heat surrounding the man sitting next to him in a Capitol Hill hearing room.

Before Delery even got a chance to speak, Senate Judiciary Committee members spent more than 30 minutes discussing issues dogging the nomination of longtime prosecutor B. Todd Jones to head the Bureau of Alcohol, Tobacco, Firearms and Explosives. The agency has gone without a Senate-confirmed leader since 2006.

Senator Chuck Grassley (R-Iowa) spent about 20 minutes today assessing why he thinks the confirmation hearing for Jones should not go forward because of open investigations about his contentious background—including the ongoing congressional probe of the ill-fated gun trafficking sting Operation Fast and Furious. Senator Amy Klobuchar (D-Minn.) spent about 10 minutes defending Jones and arguing why his hearing should not be delayed.

Delery, the acting head of the Civil Division for the past 15 months, wasn't mentioned during that time other than a brief introduction. When Delery, a former Wilmer Cutler Pickering Hale and Dorr partner, finally introduced himself, he mentioned how he brought his two young sons to the hearing so they could see how the government works.

Klobuchar, before her first question, made note of Delery’s secondary and less controversial role at the hearing. Just to let Delery’s children know, Klobuchar joked: "If less of the questions are devoted to your dad, that doesn’t mean it’s a bad thing."

Delery got only one question the entire hearing: What would be his priorities when heading the largest litigating component of the Justice Department? His answer: More of the same. Delery took over as the acting assistant attorney general in February 2012, replacing Tony West after he was named acting associate attorney general.

"I'll continue to pursue several priorities. One of them, the most important for the department and the division is protecting national security," Delery said. "I'll also continue to use the powerful tool of the False Claims Act as well as other tools to pursue fraud against the government. Last fiscal year we had a record recovery of just about $5 billion under the False Claims Act."

"And finally, our work under health and safety, pursing cases like the one we brought a few months ago against executives of a peanut butter manufacturer because of a salmonella outbreak," Delery said.

Grassley, the committee's main antagonist of the Obama administration's nominees, only mentioned Delery in conceding his confirmation was basically a foregone conclusion.

"Thank you Mr. Delery for speaking about False Claims," Grassley, a leading proponent of the anti-fraud legislation, told him. "I'm very glad to know that you’re going to use it vigorously."

Delery, who left Wilmer for the Justice Department in 2009, has received letters of support from two bipartisan groups of lawyers. (Delery, at DOJ, was first chief of staff for David Ogden, who was then deputy attorney general. Ogden has since returned to Wilmer as chair of the firm’s government and regulatory litigation group.)

A letter from former Civil Division assistant attorneys general in previous administrations was signed by Ogden, Peter Keisler of Sidley Austin; Richard Willard of Steptoe & Johnson, Frank Hunger at Walker, Tipps & Malone; Jeffrey Bucholtz of King & Spalding; Stuart Gerson of Epstein Becker & Green; Gregory Katsas of Jones Day; and Robert McCallum Jr.

Another letter of support was signed by almost two dozen former and current government employees, including former Associate Attorney General Thomas Perrelli, Associate Deputy Attorney General Robert Weiner and several Office of Legal Policy lawyers.